DWT1815

This is an appeal brought by SIPTU on behalf of four named members (Messrs. Robert Kennedy, Kenneth Gray, Patrick Donovan and Laurence Callery) (‘the Complainants’) against a decision of an Adjudication Officer (ADJ-0000675, 19 January 2018) under the Organisation of Working Time Act 1997 (‘the Act’). The Union notified the Court of its intention to appeal the aforementioned decision by letter dated 27 February 2018 (and received by the Court on 28 February 2018). The Union – having been directed to do so by the Court’s administrative staff – submitted a duly completed appeals form on 6 April 2018. This latter date is well outside the 42-day time limit for lodging an appeal under the Act. However, Mr Alastair Purdy Solicitor acting for Stobart (Ireland) Driver Services Limited (‘the Respondent’) informed the Court at the commencement of the appeal hearing that he was not seeking to challenge the Court’s decision that the Union’s letter of 28 February 2018 constituted a valid and timely appeal of the aforementioned decision of the Adjudication Officer.

The Adjudication Officer’s decision related to ten named Complainants, all ten of which were also named in the Union’s appeal. However, only the four individuals identified in this determination attended in person before the Court to pursue their appeal. The Court, therefore, deemed the appeals of the other six individuals to have been withdrawn.

The Complainants submit that the Respondent has breached its obligations to them under section 17(1) of the Act in so far as it failed to notify them twenty-fours in advance of finish times in circumstances where such finish times had not been given to them in either their contracts of employment or in any employment regulation order, registered employment agreement or collective agreement. The Adjudication Officer decided that the Complaints were not well-founded.

In making her decision, the Adjudication Officer relied on this Court’s determination in DWT1416:DMR Transport v Jacek Majchrzak. The Complainants submit that the factual matrix that applied in that case differ materially from the circumstances that apply to theirs such that Adjudication Officer erred in fact and law in determining their claims in accordance with the Labour Court’s determination in DWT1416. The Respondent, on the other hand, relies on the aforementioned determination and submits that the Complainants’ finish times unavoidably varied due to the “task and finish” nature of their employment. On that basis, the Respondent urges the Court to apply the reasoning of DWT1416 in the within appeal. The Respondent also submitted that the Court should find that it is an implied term of the Complainants’ employment contracts that the Complainants’ finishing times of necessity will vary from day to day.

Discussion and Decision

The Court does not accept that there is any significant overlap between the factual matrix that applied in DWT1416:DMR Transport v Jacek Majchrzakand that of the within appeal. The Complainant inDMR Transportwas employed as a driver of a refuse collection truck and his finishing time each day was determined in large measure by the efficiency with which he completed his round on that particular day. In that sense, the nature of his employment was very much “task and finish”. The nature of the Complainants’ employment at the material time covered by the within complaints was very different. They were employed to deliver goods on a national basis on behalf of a well-known retailer. While they were generally provided with their start time for the following day by text on the previous day, they did not know their destination on a particular day until they reported to the office on that day. It was only at that point in time that they could make a rough approximation of what their finish time might be on that day.

That being the case, the Court finds that its previous determination in DWT1416 has no application to the Complainants’ circumstances. The Court has previously considered the submission advanced by the Respondent in relation to there being an implied term in road haulage drivers’ contracts of employment and found it to be without merit (see for example DWT1438:Stobart (Ireland) Driver Services Limited v Fourteen Workers). The Court has not been presented with any legal argument or authorities in the course of the within appeal to persuade it to alter its position in this regard. It remains firmly of the view that section 17(1) of the Act clearly requires that - in order for an employer to be able to rely on the saver in that subsection - an employee must have been notified by means of an express written term in his contract of employment (or by one of the other documented means provided for in the subsection) of his finish (and start) time(s). Finally, the Court notes that the legislature has not carved out an exception to section 17 of the Act in respect of the road transport sector.

For the reasons stated above, the Court finds that the complaints herein are well-founded. The Court measures the appropriate level of compensation for each of the four named complainants at €250.00 per person.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
5 June 2018______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.